Patel Arunkumar Maganlal vs State of Gujarat and Others

J.B. Pardiwala, J.—In this appeal, the Appellant-original Petitioner challenges judgment and order dated 25.10.2010 passed by the learned Single Judge in Special Civil Application No. 16056 of 2007 whereby, according to the Appellant herein, the learned Single Judge allowed the petition but the second part of the relief, as prayed for, with regard to utilization of the space in the market yard is neither granted nor rejected.

Facts relevant for the purpose of deciding this appeal can be summarized as under:

2.1. The Appellant-original Petitioner claims to be the holder of general license issued by the Respondent-Market Committee and is trading in the market area. He also happens to be the ex-Director of the Respondent-Market Committee for the period from 1999 to 2001 from agriculturist constituency. He claims that as a license holder of the Respondent-market committee, he is duty bound to protect the funds of the market committee as per the provisions of law. It appears that the elected body of the market-committee decided to put up statue of Ex-Chairman of the Market Committee - Late Shri Atmarambhai M. Patel. It appears that the proposal was submitted and Respondent No. 2 accorded the necessary approval in this regard. Some time in the year 2006, the Appellant preferred a representation addressed to the Minister, Agriculture and Co-operation Department of the State Government as regards the decision of the Market Committee for putting up the statue and also as regards the misuse of the funds of the Market Committee. The record also reveals that against the decision of the Respondent No. 2 according the approval for putting up the statue, the Appellant preferred Revision Application No. 38 of 2007 before the Respondent No. 1-authority u/s 48 of the Gujarat Agricultural Produce Market Committee Act, 1963 challenging the approval dated 21.02.2007 given by Respondent No. 2 and also prayed to restrain the Respondent-Market Committee from placing the statue of Late Shri Atmarambhai Patel - Ex-Chairman of the Market Yard in the principle market yard, Vijapur as well as sub-market yard at Kukarwada. It appears that initially, Respondent No. 1-authority ordered the Respondent-Market Committee to maintain status quo. Finally, Respondent No. 1-authority rejected the revision application confirming the approval given by Respondent No. 2-authority for placing the statue of Late Shri Atmarambhai Patel. It is at that stage, that the Appellant herein preferred Special Civil Application No. 16056 of 2007 and challenged the decisions of Respondent Nos. 1 and 2.

Learned Single Judge came to the conclusion that there was some substance in the say of the Appellant original Petitioner that there is No. provision under the Act, Rules or bye-laws to allocate the funds and incur the expenses for the purpose of putting up a statue of the Ex-Chairman of the market yard. The learned Single Judge also came to the conclusion that there is No. power with Respondent No. 2 to grant approval u/s 33(12) of the Act framing the committee to incur huge expenses for the purpose of putting up of a statue. In short, the learned Single Judge came to the conclusion that the order passed by the Respondent No. 2 according the approval to the Committee to incur expenses for putting up statue from the funds of the Market Committee is not in accordance with law. To that extent, the learned Single Judge agreed with the Appellant-original Petitioner and finally, while allowing the petition, observed that the statue can be permitted to be erected but the members of the Agricultural Produce Market Committee will have to bear the expenses from their own pockets or from other public funds but not from the funds of the market committee. The learned Single Judge accordingly, quashed and set aside the order dated 17.05.2007 passed by Respondent No. 1 in Revision Application No. 38 of 2007 confirming the approval granted by Respondent No. 2. The learned Single Judge finally observed as under:

For the foregoing reasons, present petition is hereby allowed. The impugned order dated 17th May 2007 passed by the Respondent No. 1 in Revision Application No. 38 of 2007 confirming the approval granted by the Respondent No. 2 is hereby quashed and set aside.

It is, however, clarified that if the market funds so expended are repaid in the Respondent-Market Committee within a period of six months from today, No. interest will be recovered on the said principal amount, failing which it will be open to the concerned District Registrar to recover the amount of interest on the principal amount from the Members of the Agricultural Produce Market Committee and he will be entitled to initiate appropriate proceedings in this respect u/s 51 of the Act. Till the aforesaid amount is not repaid, the interim relief granted by this Court will continue, otherwise it will amount to dismissing the petition. Rule is made absolute accordingly.

We have heard learned advocate Mr. Dilip B. Rana appearing for the Appellant.

We have taken notice of the fact that the statue has already been put up at principle market yard, Vijapur. We have also taken notice of the fact that the statue at Vijapur was unveiled on 27.02.2011. We have also taken notice of the fact that the entire amount incurred towards putting up of the statue has been paid up by the Directors as per the affidavit-in-reply filed by the Respondent No. 3. In the affidavit-in-reply filed by the Respondent No. 3, it has been averred as under:

I say and submit that the said statue has been placed and unveiling of the said statue has already been done on 27.2.2011 and the said statue is standing as on day. Copies of photographs of the unveiling function of the statue are annexed herewith and marked as Annexure-R-I Colly. to this reply.

I say and submit that therefore, the statue of late Shri Atmaram Patel having already been unveiled and inaugurated, present appeal may not be entertained as the same has become academic and therefore, the same may be dismissed.

Another important aspect, which may kindly be considered, is that the very Appellant had preferred another application being Special Civil Application No. 2398 of 2011 restraining the Market Committee from utilizing the place in the market yard for placing and inaugurating the statue of late Shri Atmaram Patel. In the said petition earlier vide order dated 24.2.2011, the learned Single Judge of this Hon''ble Court issued notice and directed to produce record showing that the amount as directed by the learned Single Judge in its order dated 25.10.2010 passed in Special Civil Application No. 16056 of 2007 has been deposited by the members of the Market Committee.

Thereafter, when the aforesaid petition was taken up for hearing on 25.2.2011, the opponent No. 3 - Market Committee produced on record contemporaneous evidence showing that the amount in question has been deposited by the Directors of the Market Committee.

I say and submit that the learned Single Judge therefore recorded the said contention regarding restraining the Market Committee from utilizing the place in the market yard for placing the statue, the learned Single Judge found that the said prayer is barred by principles and res-judicata since the very prayer was made in Special Civil Application No. 16056 of 2007 which has not been granted by the learned Single Judge and therefore same amounts to rejection of the said prayer.

I say and submit that therefore, the learned Single Judge dismissed Special Civil Application No. 2398 of 2011 vide order dated 25.2.2011 and pursuant thereto, the unveiling function of the statue was undertaken on 27.2.2011.

I say and submit that the Appellant never challenged or even thought to challenge the order passed by the learned Single Judge in Special Civil Application No. 16056 of 2007 till March,2011 and sought to challenge the action of utilizing the place in the market yard by filing a fresh petition.

The Petitioner submits that the Appellant therefore by his own conduct had acquiescenced and had accepted the order passed by the learned Single Judge dated 25.10.2010 passed in Special Civil Application No. 16056 of 2007.

Even otherwise, the learned Single Judge has struck the balance by directing the Directors of the Market Committee to contribute from their personal funds towards expenditure incurred for placing the statue of late Shri Atmaram Patel and has held that the market funds should not be used for the said purpose. Accordingly, the Directors have deposited the amount of expenditure incurred by the Market Committee, and therefore, the market funds have not been utilized for placing and unveiling statue of late Shri Atmaram Patel.

Taking into consideration the fact that the statue has already been erected and unveiled in the month of February, 2011 and also taking into consideration the fact that the amount which was spent by the Directors from the funds of the Market Committee, has been made good by the Directors by depositing the entire amount with the Market Committee from their own pockets nothing further is required to be done in the matter.

In this view of the matter, we do not see any reason to interfere with the impugned order passed by the learned Single Judge. The appeal is accordingly dismissed with No. order as to costs. Civil Application stands disposed of.